The Great Repeal Bill or, more prosaically the European Union (Withdrawal) Bill, appears to be an heroic attempt to achieve the impossible – the embodiment of a vast body of living legislation and law on to the statute books of England, Wales, Scotland and Northern Ireland at a moment in time i.e. “exit day” – whilst addressing the fact that much of that legislation and law will be subject to change and interpretation through both judicial and democratic oversight. Not so much having your cake and eating it as stuffing your mouth to bursting whilst attempting a coherent and audible sentence.
Much of the political criticism of the Withdrawal bill is well placed. There is no effective Parliamentary oversight of the changes ministers will be able to make based on criteria which, with respect to the draftsmen of the Bill, are at best capable of broad interpretation and application and at worst virtually unintelligible. Henry VIII, and Charles 1 as well, would certainly have nodded with approval. It is also correct that the Bill expressly denies the devolved parliament and assemblies from carrying out changes themselves which therefore necessarily reverses, de facto and de jure, many aspects of devolution.
These are, however, at the end of the day political issues outside the remit of simple commercial barristers. Not so the diner de chien which is created by the problem of incorporating wholesale living law at a moment in time. The clauses of the Repeal bill addressing how the Supreme Court and the High Court are supposed to interpret and apply post exit day decisions of the ECJ. Consider, for instance, Clause 6(2):
“A court or tribunal need not have regard to anything done on or after exit day by the European Court, another EU entity or the EU but may do so if it considers it appropriate to do so”.
It is normal for English courts to have regard to decisions made in other common law jurisdictions. That is because it is recognised that the common law in many jurisdictions is based upon the same principles and it may be helpful to consider how other courts of standing have interpreted and applied. In the case of EU law absorbed into domestic law, it is unclear to a common law commercial lawyer what criteria the court should apply to decide whether it is “appropriate” to have regard to later decisions of the ECJ. Lord Neuberger, President of the Supreme Court, no less, has publicly expressed his concern at this apparent attempt, intended or otherwise, to politicise the judiciary.
And then there is the question of how it is practically possible for the UK legislature and government to take over responsibility for maintaining and updating such a huge body of legislation and regulation, much of which it had no practical hand in drafting since this was undertaken by EU draftsmen.
The pundits suggest that the Repeal Bill will have a stormy passage through Parliament. This may be so because it poses so many questions, aside from party political issues, which it fails to answer. All way above the pay grade of a simple commercial barrister!